Another Judge Finds Trump Did Not Validly Invoke Alien Enemies Act Against Alleged Gang

As judges begin to rule on the merits of President Trump’s use of the Alien Enemies Act to give him wide latitude to expel alleged Venezuelan gang members, the administration is starting to rack up losses.

A federal judge in the Southern District of New York on Tuesday enjoined the administration from moving any detainees being held in the district. 

“Since Respondents have not demonstrated the existence of a ‘war,’ ‘invasion’ or ‘predatory incursion,’ the AEA was not validly invoked by the Presidential Proclamation,” Judge Alvin Hellerstein wrote. 

He noted that his findings echoed other judges’, including a Trump appointee’s in Texas last week.

Hellerstein, a Clinton appointee, let his apparent disgust with the Trump administration’s actions permeate his ruling. 

“The destination, El Salvador, a country paid to take our aliens, is neither the country from which the aliens came, nor to which they wish to be removed. But they are taken there, and there to remain, indefinitely, in a notoriously evil jail, unable to communicate with counsel, family or friends,” he wrote. 

When analyzing the detainees’ potential for being harmed if they are removed, he pointed to Kilmar Abrego Garcia, noting that he still has not been returned to U.S. custody despite a Supreme Court ruling directing the Trump administration to “facilitate” his return. 

“Here, absent a preliminary injunction, Petitioners would be removed from the United States to CECOT, where they would endure abuse and inhumane treatment with no recourse to bring them back,” he observed, referring to the megaprison in El Salvador. “If that is not irreparable harm, what is?”

He also found that the administration’s proposed notice to the detainees about their impending removal was insufficient, both under the Supreme Court’s ruling and constitutional due process. 

At the temporary restraining order stage, he had ordered, among other things, that notice and hearing be given to the detainees in both Spanish and English. Detainees have testified in various cases that they weren’t even told where they were being sent before they were loaded onto planes.

“Petitioners have not been given notice of what they allegedly did to join TdA, when they joined, and what they did in the United States, or anywhere else, to share or further the illicit objectives of the TdA,” Hellerstein said of Tren de Aragua, a Venezuelan gang. “Without such proof, Petitioners are subject to removal by the Executive’s dictate alone, in contravention of the AEA and the Constitutional requirements of due process.”

In the last few weeks, as the administration seemingly readied more departures under the AEA, the ACLU and other lawyers for detainees frantically went district by district where the detainees were being held, seeking an emergency block to their expulsion. In an extraordinary middle-of-the-night ruling, the Supreme Court blocked any departures from the Northern District of Texas, where the detainees’ lawyers had been unable to secure a temporary restraining order and where the administration seemed to be moving detainees in order to remove them. The Southern District of New York was already locked down at that point under Hellerstein’s previous, temporary order. 

“This nation was founded on the ‘self-evident’ truths ‘that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, [and] that among these are Life, Liberty and the pursuit of Happiness,’ Hellerstein wrote, the reminder ringing grim in its context. “Our Constitution embodies these truths, in a limited government of enumerated powers, in its system of checks and balances separating the executive, legislative and judicial branches, and in its guarantee that neither citizen nor alien be ‘deprived of life, liberty, or property, without due process of law.’”

Read the ruling here: